Opposition Brief — Washington v. United States, 138 S. Ct. 1832 (2018) (No. 17-269)

No. 17-269

STATE OF WASHINGTON,

Petitioner,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

,

a

BRIEF OF RESPONDENT TRIBES IN OPPOSITION

+

Riyaz A. KANJI JouUN C, SLEDD

KANJI & KATZEN, PLLC Counsel of Record

303 Detroit Street, JANE G. STEADMAN

Suite 400 KANJI & KATZEN, PLLC

Ann Arbor, MI 48104 401 Second Ave., S.,

(734) 769-5400 Suite 700

Seattle, WA 98104

(206) 344-8100

jsledd@kanjikatzen.com

Counsel for Respondents the Hoh Tribe, the Jamestown

S’Klallam Tribe, the Lower Elwha Klallam Tribe,

the Nisqually Tribe, the Port Gamble S’Klallam Tribe,

the Sauk-Suiattle Tribe, the Squaxin Island Tribe,

the Stillaguamish Tribe and the Suquamish Tribe

|Additional Respondents And

Counsel Listed On Signature Page|

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIFEFS COM

2.

QUESTIONS PRESENTED

Whether the Court of Appeals erred in holding

that Washington lacks license to destroy treaty

fisheries through direct, in-stream blockages, where

that holding conflicts with no decision of this

Court or any other court and is demonstrably

faithful to the treaty language and history.

Whether the Court of Appeals erred in holding

that the federal government may abrogate tribal

treaty rights only through express congressional!

action, rather than through inferences drawn by

the State from the putative actions of federal bu-

reaucrats with no responsibility for tribal affairs.

Whether the Petition’s twice-discredited asser-

tions regarding the cost and scope of the district

court’s injunction warrant this Court’s review.

ii

PARTIES

Petitioner is the State of Washington, which, together

with the Director of the State Department of Fisheries

and Wildlife, was defendant at trial, and appellant at

the Ninth Circuit.

Respondents are the United States of America, Con-

federated Tribes and Bands of the Yakama Nation,

Hoh Indian Tribe, Jamestown S’Klallam Tribe, Port

Gamble S’Klallam Tribe, Lower Elwha Klallam Tribe,

Lummi Nation, Makah Tribe, Muckleshoot Indian Tribe,

Nisqually Indian Tribe, Nooksack Tribe, Puyallup

Tribe, Quileute Indian Tribe, Quinault Indian Nation,

Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin

Island Tribe, Stillaguamish Tribe of Indians, Suquamish

Indian Tribe, Swinomish Indian Tribal Community,

Tulalip Tribes, and Upper Skagit Indian Tribe.

Respondents were the plaintiffs at trial and the appel-

lees at the Ninth Circuit.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............cssccscscersceeeereees i

REET E DD 8 I SE Rare eee Re mR Co eee ii

ee Ee ST IIE sen ccsccnesvcpcrcnconenzsccnevaonesiennss iii

po Be ky, 8 rr Vv

ET IIIT coin isto niuceinsicaesdeasidunieninsanceesientseowninn l

STATEMENT OF THE CASE. ................sc0ccsssssseeees 3

I. FACTUAL BACKGROUND .............000.....2.. 3

Ke, "Fae BOS POTS TORII ia ve cnciceinceseccccenescsess 3

B. Barrier Culverts and the Decline in

Washington's Fisheries ...................000: 6

Il. COURSE OF PROCEEDINGB.................... 11

REASONS FOR DENYING THE PETITION ....... 16

I. THE COURTS BELOW CREATED NO CON-

FLICT, BUT INSTEAD HEWED CLOSELY

TO THE TREATY LANGUAGE AND THIS

COURT'S PRECEDENTS, IN HOLDING

THAT WASHINGTON DOES NOT HAVE

LICENSE TO DESTROY THE TREATY

PE ca thessedetidesrnrciincoesnsusdansnidetieieethviia 16

A. The Court of Appeals’ Interpretation of

the Stevens Treaties Creates No Con-

flict in Lower Court Authority .............. 16

B. The Court of Appeals’ Decision Does

Not Conflict with Fishing Vessel ........... 17

iv

TABLE OF CONTENTS -— Continued

Page

C. The Court of Appeals’ Decision Conflicts

with No Other Decision of This Court ..... 21

D. No Occasion Exists for Revisiting the

Careful, Factbound Examination of the

Historical Record Conducted by the

I BIE Senicascchceacscscadeisecsvessesnceetenes 23

E. The State’s Attack on the Court of Ap-

peals’ Alternate Holding Suggests No

Basis for this Court’s Review................ 24

Il. THE COURTS BELOW CREATED NO CON-

FLICT IN REJECTING THE STATE’S

EQUITABLE DEFENSE OF WAIVER....... 26

Ill. THE STATE’S RECORD-BOUND ATTACKS

ON THE DISTRICT COURT'S INJUNC-

TION REST ON PREMISES THOROUGHLY

DISCREDITED BELOW ...............0cessseeeeees 29

IV. THE STATE’S ATTEMPT TO SOW FEARS

ABOUT FUTURE DECISIONS DOES NOT

TRANSFORM THE NARROW HOLDING

BELOW INTO ONE DESERVING OF RE-

VEE Oe We BEBE CAFRIIEE sec cencsssccsevessesiccensesoce 36

COUNTY snccsstvingcsnsasaceessevusedindusnoenssinnntusnininese 39

APPENDIX

Letter from Washington Commissioner of Public

Lands to Washington Attorney General (Aug.

i BEE e erhcsinteslies cnanscticsanintdeeadavistcqpnaineusaasunemneeses la

Vv

TABLE OF AUTHORITIES

Page

CASES

Arizona v. California, 373 U.S. 546 (1963)...... .... 19, 25

Cappaert v. United States, 426 U.S. 128 (1976)......... 25

Cayuga Indian Nation v. Pataki, 413 F.3d 266

Ne i I Saroiiccratscecy sacstinsanitereccdetosecuddnbdesetancineianints 28

Choctaw Nation of Indians v. United States, 318

IE EEE ETP catisvansinaadusapainnsocticienepingenssuepiqniccaninpicets 21

City of Sherrill v. Oneida Indian Nation, 544

BA Be GIO deceascccnciinesiaricvhaisakaneasdomenerss 27, 28, 29

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

SED inecsnacacccnenaisthicnseonstnissebabicncinemdonssienaionramiatpoetess 23

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830

EINE ocsnitcdisniict bab nepiecbnibbinlesntinbibenasteeidgmendlasecaieinvcnasnbisiibeie 30

Glossip v. Gross, 135 S. Ct. 2726 (2015) ..........ccccceeeees 30

Minnesota v. Mille Lacs Band of Chippewa Indi-

Se Ei e BEE CN iieisvnsncnnscistrcnsnrsestovssosocs 23, 26

Oliphant v. Suquamish Indian Tribe, 435 U.S.

I catiatishchabinichiicescanagsiaciieneiesaciiedasiackcanbipeinants 23

Oneida Indian Nation v. County of Oneida, 617

oe BRR oe 8 eee 28

Puyallup Tribe, Inc. v. Dep't of Game, 433 US.

IE Bacchi sctceccistsentineieiicbonanesnaevuisiebistsaniniasindeukeans 19

Stockbridge-Munsee Cmty. v. New York, 756 F.3d

Se re BD iaitetitictiiseccecasmaeneniaddannbcnticaiaceerindlssias 28

Tulee v. Washington, 315 U.S. 681 (1942)... 6

United States v. Dion, 476 U.S. 734 (1986) ................ 26

vi

TABLE OF AUTHORITIES -— Continued

Page

United States v. Washington, 384 F. Supp. 312

CEG NTs, NEAT Reecascesseissantctagiackataeveniiiindnpbubeddvbess 11

United States v. Washington, 506 F. Supp. 187

Ce ly Be iccinttnsnsinenssvinethicctostentemnivinendigsincnis 12

United States v. Washington, 759 F.2d 1353 (9th

SE SINE (nevsicnstenposnanicinsuindiesscnecmsansatheseseoiigshduoemcivees 12

United States v. Washington, 157 F.3d 630 (9th

GN IPE ixcipsticsnitesn laaeasvuinidcontoneioiseeciteinesebesatencite 21

United States v. Winans, 198 U.S. 371 (1905)....4, 6, 22

Washington v. Wash. State Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658 (1979)....... passim

Winters v. United States, 207 U.S. 564 (1908)...... 24, 25

STATUTES, LAWS, AND TREATIES

Magna Carta of 1215, Ch. 33, 1 Statutes of the

Realm 11 (1810), English translation at '%p://

avalon.law.yale.edu/medieval/magframe.asp........... 6

Treaty of Medicine Creek, Dec. 26, 1854, 10 Stat.

PE Kescteashicdiiraencannesecclnsecacsoesteneaesccamnucnadaniceatinss 5, 22

Act of August 14, 1848, 9 Stat. 328 .0.0.0.0....... cece eeeeeeees 7

Act of March 2, 1863, 10 Stat. 172 ............00scssccccsssereees 7

Wash. Rev. Code § 77.15.3200 (2017) ..........00sssseeseseresees 7

Wash. Rev. Code § 77.57.030 (2017) ............cccccseeseeeeees 7

vii

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Results Washington, Public Dashboard, Goal 3

Measure 2.2.c (Dec. 2015) https://data.results.wa.

gov/reports/G3-2-2-c_Fish-Passage-Barriers ......... 15

I Tk Wks BOP inti cccenastuscamispencepsovabesaitpacesanonedentesiennes 30

I Bac iy i rctisaseninnricdiasicnbtidehimnbiasesncisnebinnseinipiseensncds 34

Wash. Att’y Gen. Op. No. 304, Fish Passage Fa-

cilities for Highway Culverts (July 19, 1950)........... 7

INTRODUCTION

This case concerns the passage of treaty-protected

fish. The core facts are largely beyond dispute. For cen-

turies, the culture and economy of the western Wash-

ington Tribes depended on salmon, which returned

from the Pacific in immense numbers to spawn in local

streams. When those Tribes entered into Treaties ced-

ing their homelands to the United States, they insisted

upon a permanent right to continue taking the fish

that were their lifeblood. Today, those federal treaty

rights are threatened. The State maintains hundreds

of barrier culverts that prevent salmon from complet-

ing their normal migration to and from the ocean.

There is no serious question about the culverts’ impact.

The State’s own agencies have documented the result-

ing devastation to the fisheries, and the district court

made detailed findings in this regard. Nor is there any

doubt about the State’s ability to fix the problem —

again, the State’s own agencies have demonstrated the

feasibility of remediating the culverts to simulate nor-

mal stream flow. Nevertheless, the State has resisted

repeated calls to respect the Tribes’ federal treaty

rights, ignoring the Tribes, the State’s own commercial

fishermen, and even the head of its own Department of

Natural Resources, all of whom have urged the State

to comply with the law and preserve the fisheries.

Faced with the State’s inaction, the Tribes and the

United States turned to federal court to vindicate the

Tribes’ federal rights. The courts below correctly recog-

nized that the right to fish is of little value if the State

can bar the streams, and thus properly held the State’s

2

refusal to remediate its fish-destroying culverts to vio-

late the Treaties. The State’s arguments notwithstand-

ing, this narrow and straightforward holding broke no

new ground. It fully accords with the treaty text and

the clear promises made by the United States treaty

negotiators — promises previously reviewed and expli-

cated by this Court. The holding conflicts with no ap-

pellate decision, and hews faithfully to the seven prior

decisions of this Court interpreting the Treaties. And

it is consistent with state policy. Since statehood, and

in accordance with dictates dating back centuries,

Washington has required that in-stream barriers allow

for fish passage, and nearly seven decades ago Wash-

ington’s Attorney General made clear that this re-

quirement applies to road culverts.

To argue for certiorari, therefore, the State has to

turn this case into something that it is not. Legally, the

State claims that this case disposes of issues ranging

from land use to water rights, when truly it is a case

about fixing state culverts that obstruct fish passage.

Factually, it asks this Court to ignore the district

court’s detailed, well-supported findings, affirmed by

the Court of Appeals, on issues ranging from the

historical intent of the treaty negotiators to the pre-

sent-day harm caused by its culverts. The Petition

overstates the scope of the injunction, distorting the

district court’s careful tailoring beyond recognition,

and repeats cost estimates that have been thoroughly

discredited. These efforts do not transform the careful,

3

record-based conclusions drawn below into ones war-

ranting this Court’s review.

>

A

STATEMENT OF THE CASE

I FACTUAL BACKGROUND

A. The Stevens Treaties

From time immemorial, the Indians of western

Washington have been a fishing people. “|A}I! of them

shared a vital and unifying dependence on anadro-

mous fish,” Washington v. Wash. State Commercial Pas-

senger Fishing Vessel Ass'n, 443 U.S. 658, 664 (1979)

(“Fishing Vessel”), which “was the great staple of their

diet and livelihood,” id. at 665 n.6.' In 1854 and 1855,

the United States negotiated a series of treaties with

the Respondent Tribes, who insisted upon one perma-

nent, overriding condition for their land cessions: that

they maintain, on and off their reservations, the an-

cient fisheries that “were not much less necessary to

‘ Anadromous fish, including salmon and steelhead, “hatch

in fresh water, migrate to the ocean where they. . . reach mature

size, and eventually complete their life cycle by returning to the

fresh-water place of their origin to spawn.” Fishing Vessel, 443

U.S. at 662. Fishing Vessel was the last of seven decisions from

this Court interpreting the Treaties at issue; it arose from the

same litigation of which this case is a subproceeding. The detailed

historical findings described and affirmed in Fishing Vessel sig-

nificantly informed this Court’s holdings. This Statement draws

heavily from Fishing Vessel’s historical discussion, which likewise

was relied upon (and supplemented) by the district court and the

Court of Appeals here. The State introduced no historical evidence

in this subproceeding.

4

the existence of the Indians than the atmosphere they

breathed.” Jd. at 680 (quoting United States v. Winans,

198 U.S. 371, 381 (1905)).

The American treaty commissioners, led by Terri-

torial Governor Isaac Stevens, “recognized the vital

importance of the fisheries to the Indians|.]” Jd. at 666.

They understood that securing those fisheries was crit-

ical to obtaining the Tribes’ agreement, and would also

allow the negotiators to satisfy their “very clear in-

structions” that the Tribes “not become a burden on the

treasury.” App. 268a. Accordingly, the Tribes “were in-

vited by the white negotiators to rely and in fact did

rely heavily on the good faith of the United States to

protect [their fishing] right.” Fishing Vessel, 443 U.S. at

667. Governor Stevens repeatedly assured the Tribes

that they would remain able to sustain themselves

through their fisheries, telling the Tribes that “|t)his

paper secures your fish,” id. at 667 n.11, and that they

could rely on this essential sustenance “forever.” App.

92a. As this Court concluded, “|the] Governor . . . and

his associates were well aware of the ‘sense’ in which

the Indians were likely to view [such] assurances. .. .

[T}he vital importance of the fish to the Indians was

repeatedly emphasized by both sides, and the Gover-

nor’s promises that the treaties would protect that

source of food and commerce were crucial in obtaining

the Indians’ assent.” Fishing Vessel, 443 U.S. at 676

(emphasis added); see also App. 91a; App. 128a-130a,

FF 1-2; App. 177a, CL17; App. 266a-268a.

5

The resulting Treaties contain virtually identical

fishing clauses:

The right of taking fish, at all usual and ac-

customed grounds and stations, is further se-

cured to said Indians, in common with all

citizens of the Territory|.|

Treaty of Medicine Creek art. III, Dec. 26, 1854, 10

Stat. 1132, 1133. In the ensuing decades, this promise

was largely honored, and the “Indians continued to

harvest most of the fish taken from the waters of Wash-

ington|.|” Fishing Vessel, 443 U.S. at 668.

By the end of the nineteenth century, however,

the State began to “deliberately and systematically

prevent| | the Tribes from engaging in the off-reserva-

tion fishing promised under the Treaties.” App. 7a.

The State waged a century-long campaign of oppres-

sive and discriminatory regulation, mass arrests, and

physical attacks to thwart the Tribes’ exercise of

their fishing rights. App. 69a-77a. The Tribes, with the

assistance of the United States, fought to save their

way of life. Repeated judicial intervention, necessi-

tated by some of “the most concerted official and pri-

vate efforts to frustrate a decree of a federal court

witnessed in this century,” and culminating in the de-

cision in Fishing Vessel, 443 U.S. at 696 n.36, ensured

that the rule of law prevailed and that the treaty prom-

ise was honored.“

* The State resurrects the canard, often expressed during

this period, that it was a “nonparty” to the Treaties. Pet. 1, 31.

However, this Court has long held the State to be hound by them

6

The efforts of the Tribes and the United States to

vindicate the Tribes’ fishing rights have long extended

to protecting the fisheries on which the rights depend,

and it is those efforts — and the State’s corresponding

resistance — that occasioned the present dispute.

B. Barrier Culverts and the Decline in

Washington’s Fisheries

Across Washington, scores of roads cross water-

ways that salmon and steelhead use to migrate to the

ocean and to return to their spawning grounds. When

road builders do not bridge a waterway, they construct

culverts that allow the stream to flow under the road.

App. 77a-78a; App. 136a, FF3.29. “Stream simulation”

culverts allow for the passage of water and fish, App.

137a-138a, FF3.37-3.38, 3.41, whereas a “barrier cul-

vert” inhibits or prevents fish passage, App. 77a. No

dispute exists that it is generally feasible to build

stream simulation culverts to allow fish to pass. App.

137a-139a, FF3.35-3.47.

Since Magna Carta, proscriptions against barriers

to fish passage have been common in Anglo-American

law. See Magna Carta of 1215, ch. 33 (“All kydells for

the future shall be removed altogether from |the Riv-

ers| Thames and Medway, and throughout all England,

under the Supremacy Clause. See, e.g., Tulee v. Washington, 315

U.S. 681 (1942). Indeed, the Tribes’ land cessions paved the way

for Washington statehood. Winans, 198 U.S. at 384.

7

except upon the sea shore.”).* The Oregon Territory Or-

ganic Act barred obstruction of salmon streams that

did not provide for proper fish passage. Act of August

14, 1848, § 12, 9 Stat. 323, 328. Just shortly before the

Treaties were negotiated and signed, that prohibition

became the law of the Washington Territory (of which

Isaac Stevens was Governor) when it was carved out

from Oregon in 1853. Act of March 2, 1853, § 12, 10

Stat. 172, 177. Washington retains fish passage laws to

this day, Wash. Rev. Code §§ 77.15.320, 77.57.030, and

since at least 1950, Washington has recognized that

those laws apply to state highway culverts. Fish Pas-

sage Facilities for Highway Culverts, Wash. Att’y Gen.

Op. No. 304 (July 19, 1950). See App. 140a, FF3.50 (ad-

mitted fact).

Unfortunately, while state law has long required

culverts to pass fish, the State has constructed and

maintains hundreds of culverts that do not. The State

claims, remarkably, that no evidence exists that these

barrier culverts harm salmon populations. Pet. 30-31.

But its assertions are flatly contradicted by the district

court’s detailed factual findings, which were affirmed

by the Court of Appeals and rest in significant part on

the State’s own admissions, including reports pub-

lished by state agencies and the testimony of agency

scientists.

* Reprinted in English translation at http://avalon.law.yale.

edu/medieval/magframe.asp.

8

The district court’s thorough findings document

how barrier culverts destroy salmon populations:

Culverts which block the upstream passage of

adult salmon returning to spawn render large

stretches of streambed useless for spawning

habitat, and reduce the number of wild salmon

produced in that stream. Culverts which block

stream areas in which juvenile salmon rear

may interfere with their feeding and escape-

ment from predators. Culverts which block

the passage of juvenile salmon downstream

prevent these salmon from reaching the sea

and attaining maturity.

App. 174a-175a, CL7 (summarizing findings); see also,

e.g., App. 160a-162a, FF20-23, 26.

With respect to state barrier culverts specifically,

the district court quantified, based on the Washington

Department of Fish and Wildlife’s (““WDFW’s”) own

records, their singular impact on salmon spawning and

rearing habitat:

State-owned barrier culverts are so numerous

and affect such a large area that they have a

significant total impact on salmon produc-

tion. ... As of the trial date in 2009, there

were 1,114 state-owned culverts in the Case

Area, including at least 886 that blocked

“significant habitat”.... WDFW_ records

showed at that time that State-owned barrier

culverts blocked salmon access to an esti-

mated 1,000 miles of stream and nearly five

9

million square meters of habitat. Admitted

Facts 3.64-3.71.

App. 162a, FF27 (emphasis added); see also App. 95a

(affirming same); App. 115a (“The record contains ex-

tensive evidence, much of it from the State itself, that

the State’s barrier culverts have |a substantial adverse

effect on salmon|.”); App. 156a-157a, FF4; App. 109a.

The district court further made findings regarding

specific rivers where barrier culverts have destroyed

or substantially interfered with salmon populations.

App. 161la, FF24-25; see also App. 110a-111a. It found

that “|clyclical patterns in ocean conditions and other

natural disturbances cannot account for the persistent,

long-term downward trend in Case Area salmon popu-

lations.” App. 158a, FF 15 (emphasis added). And, again

contrary to the State’s claims, it found that “|clorrec-

tion of fish passage barrier culverts is a cost-effective

and scientifically sound method of salmon habitat res-

toration. It provides immediate benefit in terms of

salmon production, as salmon rapidly re-colonize the

upstream area and returning adults spawn there. Ex-

hibit AT-004, p. 12.” App. 166a-167a, FF38; see also

App. 111la-114a. Indeed, as the district court noted, the

State’s own fisheries agency “has recognized that cul-

verts must be corrected in order to accomplish the

State’s salmon recovery efforts\.\” App. 155a, FF3.131

(admitted fact) (emphasis added); see also App. 130a,

FF3.1; App. 156a, FF3.132-3.134 (admitted facts).

In 1997, the state legislature created a Fish Passage

Task Force, co-chaired by the WDFW and the Washington

10

State Department of Transportation (“WSDOT”), and

including governmental and industry representatives.

App. 147a, FF3.88. The Task Force reported “that fish

passage barrier culverts are a ‘kev factor’ in the wild

salmon equation” and that “the creation of new barri-

ers must be prevented and the rate of barrier correc-

tion must be accelerated if Washington wild salmon

and trout stocks are to recover.” App. 147a, FF3.89

(quoting Task Force Report) (internal quotation marks

omitted). Thereafter, WDFW, State Parks, and the Wash-

ington Department of Natural Resources (“WDNR”)

took steps to remediate their barrier culverts. App.

148a, FF3.90; App. 166a, FF36-37. However, the vast

majority of state barrier culverts are operated by

WSDOT, whose remediation has been so slow that the

district court found that even “assuming no new bar-

rier culverts were to develop, it would take the State

more than 100 years to replace the ‘significantly block-

ing’ WSDOT barrier culverts that existed in 2009.”

App. 163a, FF 28.

But neither the fish nor the Tribes have a century

to wait. “Salmon abundance has declined precipitously

from treaty times, but particularly in the last few

decades.” App. 157a, FF7; see also App. 174a, CL6

(“Salmon stocks in [western Washington| have de-

clined alarmingly|.|”); App. 85a. And “(t]he Tribes and

their individual members have been harmed econom-

ically, socially, educationally, and culturally by the

greatly reduced salmon harvests that have resulted

from . . . State-maintained fish passage barriers.” App.

176a, CL14; see also App. 85a (quoting App. 158a,

1]

FF 10); App. 157a-158a, FF9-13 (describing impacts on

Tribes from decline in fisheries). Non-Indian fisher-

men have likewise suffered greatly from the deteriora-

tion of the fisheries, App. 157a, FF8; App. 167a, FF 39;

App. 175a, CL11, and have voiced strong support for

the district court’s injunction. Pacific Coast Fed’n of

Fishermen’s Ass’n Amicus Brief, 9th Cir. Dkt. 66-1, 66-

2. As the head of the WDNR summarized in urging

the Washington Attorney General not to file a Petition

here, “Salmon runs continue to decline across the

state. ... Saving our salmon is not simply a tribal is-

sue. It is a Washington issue|.|” Tribal Respondents

App. la-2a.

Il. COURSE OF PROCEEDINGS

The United States and tribal plaintiffs filed

United States v. Washington in 1970, challenging inter-

ference with tribal harvest through discriminatory

state regulation and enforcement and fishery deple-

tion through habitat alteration, including barrier cul-

verts. United States v. Washington, 384 F. Supp. 312,

328 (W.D. Wash. 1974). The district court bifurcated

the proceedings. In Phase I, it apportioned the harvest

to allow sufficient fish for tribal needs and enjoined

contrary state regulation. Jd. at 342-44, 401-02, 414-

19. It retained jurisdiction to resolve the Phase II hab-

itat and hatchery fish issues and other fishing disputes

that might arise. /d. at 333.

Following Ninth Circuit affirmance and subse-

quent proceedings engendered by state resistance to

12

the district court’s decrees, this Court held that, in or-

der to meet their moderate living needs, the Tribes

have a right of up to half the harvest in their usual and

accustomed fishing waters. Fishing Vessel, 443 U.S.

at 686-87. The Court deemed hatchery fish issues

broached by the parties as beyond the scope of its re-

view, as the district court had not yet ruled in Phase II.

Id. at 688 n.30.

The district court subsequently issued a broad

declaration, applicable to all state activities and with-

out reference to a particular dispute, that the State

had a duty “to refrain from degrading the fish habitat

to an extent that would deprive the tribes of their mod-

erate living needs.” United States v. Washington, 506

F. Supp. 187, 208 (W.D. Wash. 1980). On rehearing en

banc, the Ninth Circuit, with then-Judge Kennedy on

the panel, emphasized that “|t|he State of Washington

is bound by the [Treaties],” United States v. Washing-

ton, 759 F.2d 1353, 1357 (9th Cir. 1985) (per curiam),

but vacated the district court’s declaration as contrary

to sound judicial discretion. “|T|he measure of the

State’s obligation will depend for its precise legal for-

mulation on all of the facts presented by a particular

dispute.” Jd.

In 2001, following the State’s failure to take mean-

ingful action regarding WSDOT barrier culverts fol-

lowing the 1997 Task Force Report, supra at 9-10, the

Tribes initiated this sub-proceeding under the district

court’s continuing jurisdiction. The United States

joined, seeking the same relief. On cross-motions for

summary judgment, the district court declared that

13

the State’s barrier culverts violated the Treaties. App.

271a. The court then held a trial to determine the pro-

priety and scope of injunctive relief. App. 84a. The

State declined the district court’s invitation to propose

injunction terms, stating only that it had not violated

the Treaties and hence that no injunction should issue.

App. 107a.

The district court’s final opinion included exten-

sive findings of fact and conclusions of law. App. 128a-

179a. It held that the State had violated a “narrow and

specific treaty-based duty,” App. 178a, CL19, “to re-

frain from building or operating culverts . . . that hin-

der fish passage and thereby diminish the number of

fish that would otherwise be available for Tribal har-

vest.” App. 271a; App. 174a, CL4.

The district court made numerous detailed find-

ings, discussed above, regarding the harm to the fish-

eries from state-owned barrier culverts; the resulting

injury to the Tribes’ economy and culture; and the con-

comitant injury to the State’s non-Indian commercial

and sports fishermen. Supra at 8-11. It found that the

costs of fixing WSDOT culverts were far less than the

State was predicting and that the State’s culverts

would need to be replaced at the end of their useful life

in any event, or in connection with highway projects.

App. 170a, FF48. Even the State’s inflated claims of

$117 million in annual costs, App. 118a, would easily

fall within the Department of Transportation’s budget

(which was $7.88 billion for the 2011-2013 biennium),

and such spending would have no effect on other

state programs because of the segregation of the

14

transportation budget. App. 171a-173a, FF54-60; App.

177a-178a, CL17.

The district court also found that at its current

rate of culvert remediation, the WSDOT would not fin-

ish the job for more than a century, if ever. App. 162a-

164a, FF28-31. It concluded that “|t|he balance of

hardships tips steeply toward the Tribes in this mat-

ter,” App. 177a, CL16, and that the public interest fa-

vors an injunction because the Tribes, non-Indian

fishermen, and Washington’s iconic fisheries and re-

lated economic activity will all benefit, App. 178a,

CL18.

The district court carefully tailored the injunction

to remedy the barrier culverts while minimizing the

burden on the State. The court’s injunction “dividels]

WSDOT barrier culverts into two categories. High pri-

ority category culverts |those blocking more than 200

meters of habitat] must be remediated within seven-

teen years. Low priority category culverts must be re-

mediated only at the end of the natural life of the

existing culvert, or in connection with a highway pro-

ject that would otherwise require replacement of the

culvert.” App. 14a. In addition, high priority “culverts

blocking a total of ten percent of the accessible up-

stream habitat above all the high priority culverts | |

can be remediated on the schedule of low priority cul-

verts.” App. 14a-16a; see also App. 237a-238a, §§ 6-8.

By the State’s own calculations, approximately 230

high-priority state culverts can be deferred under this

latter provision. App. 15a-16a; App. 119a; App. 238a,

§ 8. The injunction also requires the State’s natural

15

resource agencies to correct their barrier culverts by

2016, as already required by state law and policy. App.

237a, § 5.

The State did not seek a stay of the injunction. The

natural resource agencies largely completed their cor-

rections by the 2016 deadline.*

The State appealed. In a thorough opinion, the

Ninth Circuit affirmed the district court’s extensive

findings of fact and its determination that the State

has acted in violation of the Treaties by maintaining

barrier culverts, as well as the propriety and scope of

its injunction. App. 58a-126a, la-17a. The Circuit de-

nied rehearing en banc, over a dissent authored by

Judge O’Scannlain. App. 17a-42a. This Petition fol-

lowed.

* https://data.results.wa.gov/reports/G3-2-2-c_Fish-Passage-

Barriers.

16

REASONS FOR DENYING THE PETITION

I. THE COURTS BELOW CREATED NO CON-

FLICT, BUT INSTEAD HEWED CLOSELY

TO THE TREATY LANGUAGE AND THIS

COURT’S PRECEDENTS, IN HOLDING THAT

WASHINGTON DOES NOT HAVE LICENSE

TO DESTROY THE TREATY FISHERIES.

A. The Court of Appeals’ Interpretation of

the Stevens Treaties Creates No Conflict

in Lower Court Authority.

Washington argues that, despite securing to the

Tribes the right of taking fish, the Stevens Treaties

place no restriction on the State’s ability to extirpate

the fish runs that form the subject matter of the treaty

right. “The State contended, and continues to contend,

that it can block every salmon-bearing stream into Pu-

get Sound without violating the Treaties.” App. 8a; see

also App. 87a-88a (quoting oral argument); App. 83a

(quoting State’s Answer). That cannot be correct, as it

would nullify the Tribes’ carefully negotiated fishing

rights. The Court of Appeals recognized this and re-

jected the State’s novel position. It did so cautiously,

“holdling| only that the State violated the Treaties

when it acted affirmatively to build roads across

salmon bearing streams, with culverts that allowed

passage of water but not passage of salmon.” App. 10a-

lla; see also App. 96a; App. 84a. No court of appeals or

state supreme court takes the contrary view — namely,

that a State can freely destroy treaty-reserved fisher-

ies despite the absence of treaty language giving it that

authority. As the State does not contest, the decision

17

below accordingly creates no conflict in lower court au-

thority.

B. The Court of Appeals’ Decision Does

Not Conflict with Fishing Vessel.

The State’s principal argument for certiorari is

that the decision below “interprets a federal treaty in

a way that rejects this Court’s prior reading of the ex-

act same language in this very case.” Pet. 18. But the

conflict alleged with Fishing Vessel is illusory. Fishing

Vessel addressed the allocation of the fisheries, and

held that “an equitable measure of the common right

should initially divide the harvestable portion of each

run that passes through a ‘usual and accustomed’

place into approximately equal treaty and nontreaty

shares, and should then reduce the treaty share if

tribal {moderate living] needs may be satisfied by a

lesser amount.” 443 U.S. at 685. Fishing Vessel so held

because the Treaties secure the Tribes’ right to take

fish “in common with all citizens,” id. at 674, and

“|slince the days of Solomon, |an equal] division has

been accepted as a fair apportionment of a common as-

set,” id. at 686 n.27.

The Court of Appeals, by contrast, addressed

whether the Treaties place any limits on the State’s

ability to destroy the fisheries that form the Treaty res,

and held that they do. There is no inconsistency be-

tween these two holdings.

First, the procedural history of this case precludes

the State’s assertion of a conflict. As discussed above,

18

Judge Boldt bifurcated the proceedings in United

States v. Washington, with Phase I focused on the tribal

share of the fisheries and Phase II on issues relating

to the overall number of fish, including in-stream bar-

riers. Supra at 11; App. 78a. Fishing Vessel arose from

the lower court proceedings in Phase I, see 443 U.S. at

674, and the Court recognized that Phase II issues

were not “fairly subsumed within |the] grant of certio-

rari.” Jd. at 688 n.30. The State thus claims a conflict

with Fishing Vessel on an issue not before the Fishing

Vessel Court.

Second, the State’s asserted conflict depends on a

patent distortion of the decision below. The Court of

Appeals addressed a question left open in Fishing Ves-

sel, namely whether the Treaties place any limits on

the State’s ability to destroy the treaty fisheries. In an-

swering that question, the Court of Appeals’ decision

was narrow. Thus, the court did not hold that the

Tribes are entitled to enough salmon to provide a

moderate living irrespective of the obligation to share

harvest, App. 78a-79a, and despite variations in cir-

cumstances. See App. 10a-11a (“We do not hold that the

Treaties’ promise of a moderate living is valid against

acts of God. ... Nor do we hold that the promise is

valid against all human-caused diminutions, or even

against all State-caused diminutions.”). It held “only

that the State violated the Treaties when it acted af-

firmatively to build . . . culverts that allowed passage

of water but not passage of salmon.” /d.; see also App.

128a (district court holding).

19

There simply is no contradiction between this

holding and Fishing Vessel’s allocation determination.

That the “in common with” language limits the tribal

share does not suggest the State may reach in and de-

stroy the fish subject to that share. Indeed, only two

Terms earlier, this Court had held that the Treaties do

not allow one party to frustrate the rights of others

through destruction of the fisheries. Puyallup Tribe,

Inc. v. Dep't of Game, 433 US. 165, 176 (1977)

(Puyallup Tribe could not “interdict completely the mi-

grating fish” passing through its reservation as that

would impair the rights of non-Indian fishers). Only by

ignoring the textual, “in common with” basis for the

equitable allocation of the fisheries can the State argue

that this Court explicitly considered an issue not be-

fore it and rejected all limits on the State’s ability to

eviscerate the Tribes’ share.

Third, the State errs in seeing a conflict in the

Court of Appeals’ characterization of the purpose of the

treaty promise as being “that the number of fish would

always be sufficient to provide a ‘moderate living’ to

the Tribes.” App. 94a (citing Fishing Vessel, 443 U.S.

at 686). Indeed, this language from the decision below

should surely sound familiar, as it tracks this Court’s

statement in Fishing Vessel nearly verbatim:

As in Arizona v. California and its predecessor

cases, the central principle here must be that

Indian treaty rights to a natural resource that

once was thoroughly and exclusively exploited

by the Indians secures so much as, but no

more than, is necessary to provide the Indians

20

with a livelihood — that is to say, a moderate

living.

443 U.S. at 686. Far from “reject|ing| this Court’s prior

reading of the . . . |treaty| language,” Pet. 18, then, the

Court of Appeals described the fishing right in virtu-

ally identical terms.

Indeed, the Court of Appeals relied on the moder-

ate living standard much as this Court did in Fishing

Vessel. Just as this Court used the standard to bound

the tribal share, the Court of Appeals used it to bound

the State’s obligation to maintain culverts for fish pas-

sage — while recognizing that the Tribes cannot exceed

their share “even if the supply of salmon is insufficient

to provide a moderate living.” App. 10a. That is not con-

flict, but agreement.

Fourth, the factual conclusions in Fishing Vessel

confirm the absence of a conflict. As discussed above,

this Court detailed three sets of factual findings con-

cerning the treaty negotiations and historical context

that substantially informed its holding. Supra at 4.

Thus, it described: (1) the tremendous significance of

the anadromous fisheries to the Washington Tribes,

and their insistence on retaining those fisheries in or-

der to survive; (2) the United States’ recognition of that

dependence and its determination, motivated by con-

cern for the Tribes and by self-interest, that the fisher-

ies be protected; and (3) the resulting assurances,

“crucial in obtaining the Indians’ assent,” that “the

treaties would protect |their| source of food and com-

merce,” 443 U.S. at 676.

21

The Court of Appeals and the district court relied

heavily on these same findings, and on additional un-

controverted historical evidence, in concluding that the

treaty negotiators would not have understood the

State to possess the right to block fish passage and

thereby to destroy the fisheries the United States had

promised to protect. App. 7a; App. 79a; App. 84a; App.

129a-130a; App. 263a-266a. Far from conflicting with

Fishing Vessel, then, the decisions below fully comport

with the conclusions that this Court drew from the his-

torical record.°

In sum, the State’s principal argument, that of a

purported conflict with Fishing Vessel, provides no ba-

sis for the writ to issue.

C. The Court of Appeals’ Decision Conflicts

with No Other Decision of This Court.

The State argues that the Court of Appeals’ deci-

sion also “conflicts with this Court’s holdings about

treaty interpretation.” Pet. 22. That is flatly incorrect.

The State first asserts that the decision contra-

venes the statement in Choctaw Nation of Indians v.

* The State additionally argues that the “moderate living”

standard is “unworkable.” Pet. 21. In other words, it argues that

the Court of Appeals’ reliance on a standard ratified in Fishing

Vessel creates a conflict with Fishing Vessel — which underscores

the flimsiness of the asserted conflict. The argument also smacks

of hypocrisy. The State has not hesitated to rely on the moderate

living standard in arguing that the tribal share of various fisher-

ies should be capped. See, e.g., United States v. Washington, 157

F.3d 630, 651-52 (9th Cir. 1998).

22

United States, 318 U.S. 423, 432 (1943), that Indian

treaties “cannot be rewritten or expanded beyond their

clear terms,” because the Court of Appeals purportedly

ignored the treaty provision by which the Tribes ceded

land. But no matter how strenuously the State and its

amici claim that the “import” of the Court of Appeals’

holding is “that the Tribes silently retained a right to

control land use decisions,” Pet. 23, the court held only

that the State cannot maintain culverts that block fish

passage, a decision that has no implications for land

use.

In addition, for over a century this Court has held

that the cession language is qualified by the treaty

fishing clause, which reserves to the Tribes various

pre-existing rights in the ceded territory. Winans, 198

U.S. at 381. The State nowhere explains how its asser-

tion of unlimited authority to block 1,000 miles of

streams and destroy the fish runs in them squares

with the Treaties’ express promise that “|t|he right of

taking fish, at all usual and accustomed grounds and

stations, is further secured to said Indians|.|” Treaty of

Medicine Creek art. 3, 10 Stat. at 1133 (emphasis

added). Under the State’s theory, the Tribes would en-

joy no security at all in their fishing right — it would

exist entirely at the mercy of the State, which could

unilaterally destroy that which the Tribes insisted

upon as a prerequisite to their land cession.

The State next questions the lower courts’ reliance

on statements of Governor Stevens and his fellow ne-

gotiators at the treaty councils to interpret the text of

the Treaties that they drafted. Pet. 23-24. But seven

23

decisions of this Court have construed the language of

the Treaties in light of that negotiating record. And

while the State reads Fishing Vessel differently than

did the courts below, Fishing Vessel unquestionably

looked to the statements of the treaty negotiators in

construing the treaty language, which has been a hall-

mark of this Court’s approach to treaty interpretation.

“This review of the history and the negotiations of the

agreements is central to the interpretation of treaties.”

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 202 (1999) (emphasis added); see a/so Ol-

iphant v. Suquamish Indian Tribe, 435 U.S. 191, 206

(1978) (treaty language is to be “read in light of the

common notions of the day and the assumptions of

those who drafted |it|”); Hastern Airlines, Inc. v. Floyd,

499 U.S. 530, 535 (1991) (applying same principles to

construction of non-Indian treaty).

D. No Occasion Exists for Revisiting the

Careful, Factbound Examination of the

Historical Record Conducted by the

Courts Below.

The State — which did not put on or controvert any

historical evidence in this subproceeding — makes a

faint attempt to question the district court’s detailed

historical findings by asserting that the parties’ “prac-

tical” construction suggests the State is free to destroy

treaty fisheries. Pet. 24. The State wisely does not be-

labor this argument, which would require this Court to

revisit the lower courts’ careful findings of historical

24

fact — findings fully consistent with those affirmed in

Fishing Vessel.

Even if factbound error correction were the stuff

of certiorari, the State makes no claim of error. As

noted, the treaty language, negotiating history, and

subsequent history of tribal harvests belie a State

right to destroy the fisheries. That the “Tribes agreed

in the treaties that roads could be built,” Pet. 24, does

not suggest that they and the United States agreed to

fish barriers under those roads, particularly when con-

temporaneous territorial law proscribed exactly that.

Supra at 7. The culvert and dam building cited by the

State occurred decades after the Treaties, and nothing

in the record indicates that the fedeirui or state govern-

ments considered the Treaties as they undertook those

activities.

E. The State’s Attack on the Court of Ap-

peals’ Alternate Holding Suggests No

Basis for this Court’s Review.

The Court of Appeals held that “|e/ven if Governor

Stevens had not explicitly promised that ‘this paper se-

cures your fish,’ and that there would be food ‘forever,

lit} would infer such a promise.” App. 92a. This holding

follows directly from this Court’s seminal holding in

Winters v. United States, 207 U.S. 564 (1908), that an

explicit reservation of tribal rights in land implies the

reservation of water rights necessary to their use.

“Just as the land on the Belknap Reservation |in Win-

ters| would have been worthless without water to

25

irrigate the arid land,. . . the Tribes’ right of access to

their usual and accustomed fishing places would be

worthless without harvestable fish.” App. 94a.

The State’s attack on this holding provides no ba-

sis for review. First, the holding was in the alternative,

and revisiting it would not affect the outcome below.

Second, the attack questions the factbound appli-

cation of settled law. This Court enunciated the Win-

ters doctrine over a century ago, and has reaffirmed it

repeatedly. See, e.g., Cappaert v. United States, 426

U.S. 128, 138 (1976); Arizona v. California, 373 U.S.

546, 599-600 (1963). The relevance of the doctrine to

fishing rights under the Stevens Treaties was ce-

mented in Fishing Vessel, which relied on Arizona v.

California (a Winters case) for the “central principle”

that the Treaties reserve fisheries to the tribes suffi-

cient for a moderate living. 443 U.S. at 686.

Third, the State’s claim of error is meritless. The

State asserts that inferring a treaty right to fish pas-

sage through its culverts is unnecessary because both

it and the federal government have the authority and

“incentives to preserve salmon runs.” Pet. 25. This, of

course, has no bearing on the promises made in the

text of the Treaties as explained by Governor Stevens

in 1855. And the unchallenged and largely stipulated

findings, as detailed above, are that there has been a

precipitous decline in salmon stocks, resulting in great

harm to the Tribes, and caused in no small part by

the State’s barrier culverts. App. 85a (quoting App.

158a, FF 10; App. 174a, CL6-7). Washington’s Attorney

26

General may be comfortable engaging in platitudes

about state protection of the treaty fisheries, but the

courts below were correct to respect history, the record,

and the views of the State’s natural resource agencies

instead. App. 69a-77a.

Il. THE COURTS BELOW CREATED NO CON-

FLICT IN REJECTING THE STATE’S

EQUITABLE DEFENSE OF WAIVER.

The State challenges the rejection of its claim that

the United States waived the Tribes’ treaty rights by

permitting or reviewing the design of some state cul-

verts. Pet. 27. The Court of Appeals grounded this re-

jection in the principle that the United States “may

abrogate a treaty with an Indian tribe only by an Act

of Congress that ‘clearly express|es an] intent to do

so.” App. 97a (brackets in original) (quoting Mille

Lacs, 526 U.S. at 202). This is black-letter law, as this

Court has long held that, because “Indian treaty rights

are too fundamental to be easily cast aside,” United

States v. Dion, 476 U.S. 734, 739 (1986), “Congress’ in-

tention to abrogate Indian treaty rights [must] be clear

and plain,” id. at 738; see also Mille Lacs, 526 U.S. at

202-03; Fishing Vessel, 443 U.S. at 690.

The State does not and cannot argue abrogation

by Congress because there has been none. It claims in-

stead that employees of the Federal Highway Admin-

istration — with no responsibility for, apparent knowledge

of, or attention to tribal issues — waived the Tribes’

rights through their review of state culvert designs

27

before approving federal highway grants. Pet. 27. But

no court has ever accorded to federal bureaucrats the

awesome power to destroy treaty rights. Far from cre-

ating a conflict, the Court of Appeals’ decision avoided

one.

The State asserts that the fundamental principle

that only Congress can waive and thereby abrogate

treaty rights was overruled sub silentio by City of Sher-

rill v. Oneida Indian Nation, 544 U.S. 197 (2005), and

has been disregarded by three later Second Circuit de-

cisions. Pet. 25-27. But far from “brush[ing] aside Sher-

rill,” id. at 26, the Court of Appeals analyzed it closely

and properly determined that it does not apply here.

App. 98a-99a; App. 12a. The United States was not a

party to Sherrill. The equitable defenses that this

Court upheld there were grounded in the passage of

time: in particular, in the passage of two hundred years

since the Oneida Nation sold its land, the settlement

of that land by non-Indians, and the disruptive poten-

tial inherent in the Nation’s reassertion of territorial

jurisdiction after so many years. In sum, “the distance

from 1805 to the present day, the Oneidas’ long delay

in seeking equitable relief against New York or its

local units, and developments in the city of Sherrill

spanning several generations, evoke the doctrines of

laches, acquiescence, and impossibility, and render

inequitable the piecemeal shift in governance this

suit seeks unilaterally to initiate.” Sherrill, 544 US.

at 221; see also id. at 218-19. There is nothing like that

here.

28

The Second Circuit has extended Sherrill to

land claims involving the United States. Stockbridge-

Munsee Cmty. v. New York, 756 F.3d 163 (2d Cir. 2014);

Oneida Indian Nation v. County of Oneida, 617 F.3d

114 (2d Cir. 2010); Cayuga Indian Nation v. Pataki, 413

F.3d 266 (2d Cir. 2005). However, like the Court of Ap-

peals, it has recognized that the Sherrill defenses re-

main grounded in the passage of time and inaction by

tribes (and not just the United States). “In the wake of

this trilogy — Sherrill, Cayuga, and Oneida — it is now

well-established that Indian land claims asserted gen-

erations after an alleged dispossession are inherently

disruptive. . . and are subject to dismissal on the basis

of laches, acquiescence, and impossibility.” Stock-

bridge-Munsee, 756 F.3d at 165; see also Oneida, 617

F.3d at 127.

The contrast between this case and Sherrill and

its Second Circuit progeny is stark. There has been no

abandonment of rights. The Tribes (and the United

States) have fought for over a century to preserve the

Tribes’ treaty fishing rights, enduring oppressive state

efforts that culminated in the “employ|ment of] sur-

veillance planes, high powered boats, tear gas, billy

clubs and guns against tribal members engaged in

off-reservation fishing,” App. 7a, coupled with “extraor-

dinary machinations” by state courts and agencies in

resisting federal court decrees protecting the Tribes’

rights, Fishing Vessel, 443 U.S. at 696 n.36. And the

Tribes’ response has long included efforts to address

state-owned barrier culverts. The Tribes and the

United States pled claims respecting culverts at the

29

outset of United States v. Washington, and “|f|or many

years, the Tribes had complained that the State had

.. . built culverts under the roads that allowed passage

of water but not passage of salmon.” App. 8a. The

Tribes’ claims thus upset no “justifiable expectations,”

given their consistent assertion and the ancient prov-

enance of Washington’s ongoing fish passage obliga-

tions. The State accordingly did not argue to the Court

of Appeals, and does not argue here, that the passage

of time may bar the Tribes’ claims. Cf App. 17a-18a

(time bar suggestion made in dissent from denial of re-

hearing en banc); see also App. 20a; App. 32a.

Because no plausible claim can be made that

the Tribes seek to revive long-abandoned rights, there

is no conflict with Sherrill and the Second Circuit’s

decisions. Indeed, under black-letter law regarding ab-

rogation of tribal treaty rights, the State’s waiver ar-

gument, not the Court of Appeals’ rejection of it, is the

outlier.

Ill. THE STATE’S RECORD-BOUND ATTACKS

ON THE DISTRICT COURT’S INJUNCTION

REST ON PREMISES THOROUGHLY DIS-

CREDITED BELOW.

The State, which refused to participate in the

shaping of the district court’s injunction, now spills a

great deal of ink attacking it. But its attacks implicate

no unsettled questions of law. They are record-bound,

and rely on assertions debunked below and contra-

dicted by the state agencies possessing relevant

30

subject-matter expertise. After a detailed review of the

injunction and underlying findings, the Court of Ap-

peals concluded that “Washington misrepresents the

evidence and mischaracterizes the district court’s or-

der.” App. 108a. The same is true here, and the factual

disputes presented by the State provide no basis for

further review. Sup. Ct. R. 10; Glossip v. Gross, 135

S. Ct. 2726, 2740 (2015) (“Where an intermediate court

reviews, and affirms, a trial court’s factual findings,

this Court will not lightly overturn the concurrent

findings of the two lower courts.”) (internal quotation

marks and citation omitted); Exxon Co., U.S.A. v. Sofec,

Inc., 517 U.S. 830, 841 (1996) (this Court “cannot un-

dertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and ex-

ceptional showing of error”) (internal quotation marks

and citations omitted).

The State makes three arguments. First, it claims

that “‘|t|he injunction requires [it] to replace or repair

all 817 culverts located in the [case] area . . . without

regard to whether replacement of a particular culvert

actually will increase the available salmon habitat’”

because of other in-stream barriers. Pet. 29 (quoting

App. 37a). That attack distorts the injunction beyond

recognition. As explained above, supra at 14, the in-

junction divides WSDOT barrier culverts into high-

and low-priority categories and imposes a correction

deadline only for the former. All low-priority culverts,

and up to 230 high-priority culverts designated by the

State, must be remediated only when the State would

do so anyway — at the end of the culvert’s natural life,

31

or during a highway project that would otherwise re-

quire its replacement. App. 114a-116a.° Far from craft-

ing an inflexible injunction, then, the district court

accorded the State considerable discretion in choosing

which culverts to remediate.

Second, the State claims that the injunction re-

quires fish passage through culverts “without any evi-

dence” that this will enhance salmon populations. Pet.

30. As detailed above, this claim is flatly contradicted

by the district court’s detailed findings, affirmed by the

Court of Appeals, and by the State’s own agencies with

subject-matter expertise, on whose reports the district

court’s determinations largely hinged. Supra at 7-10.

The State cannot simply wish away these findings and

the record evidence on which they are based. Nor do

annual fluctuations in the runs, despite stable culvert

numbers, Pet. 30-31, prove that culverts are harmless

~ they merely show that natural variation is also at

work.

The State criticizes only the Court of Appeals’

citation to one particular piece of record evidence,

the 1997 Task Force Report. Even if the criticism was

warranted, it would say nothing about the numerous

other documents relied upon by the district court,

and it would hardly justify the writ. And while the

State claims that “the district court — the factfinder —

® The rehearing dissent misunderstands this point. The in-

junction does not simply provide the State “a longer schedule for

replacing barriers that will open up less habitat.” App. 40a. It al-

lows the State to wait until the barriers would otherwise need re-

placement.

32

rejected the use of that report to predict ‘lost’ salmon

as unreliable and never cited it in its findings of fact,”

Pet. 31, this is simply not true. See App. 147a, FF3.89.

In the wake of the report, state agencies other

than WSDOT have acted to remediate their barrier

culverts. Jd.; see also App. 148a, FF3.90; App. 164a-

166a. Those agencies have recognized that the exclu-

sion of fish from 1,000 miles of spawning and rearing

grounds has significantly harmed their populations.

The district court did not err in so finding based on the

overwhelming and largely stipulated evidence before

it, and the Court of Appeals created no occasion for cer-

tiorari in affirming that conclusion.

Third, and finally, the State claims that the injunc-

tion works a “stark inequity” in requiring the State to

pay the full cost of replacing culverts whose construc-

tion was partly supported with Federal Highway Ad-

ministration grants, Pet. 31, and more generally that

the district court failed “to consider the equities in

fashioning relief,” Pet. 32. As to the first point, the

Court of Appeals aptly concluded that the district court

was right to require the State to remedy its own viola-

tions of the Treaties, rather than continuing to hide be-

hind purported authorizations from federal officials.

“It was not an abuse of discretion to require the State

to pay for correction of its own barrier culverts.” App.

120a.

As to the broader point, the State again misstates

the record. The district court carefully weighed the eq-

uities in fashioning its relief — it just did so in a way

33

that the State does not like. The court concluded that

“Itlhe balance of hardships tips steeply toward the

Tribes in this matter.” App. 177a, CL16; see also App.

120a-121a (affirming district court’s conclusions). It

relied on its findings, consistent with those affirmed in

Fishing Vessel, that the promise of a sustained fishery

“was crucial in obtaining |the Tribes’] assent to the

Treaties’ provisions,” and reasoned that “le|quity fa-

vors .. . keepling| the promises upon which the Tribes

relied when they ceded huge tracts of land|.!” App.

177a, CL16.

As noted, the district court further found that the

Tribes have suffered grave economic and cultural in-

jury from the infringement of their treaty rights. App.

176a, CL 14. By contrast, “|t|he State has the financial

ability to accelerate the pace of barrier correction.”

App. 177a-178a, CL17. The court rejected the State’s

cost estimates for culvert removal as unsupported by,

and significantly in excess of, the historical costs in the

record, App. 170a, FF48, and concluded that the rele-

vant cost is the marginal cost of more timely correc-

tion. App. 177a-178a, CL17. It further found that even

the State’s inflated cost claims would easily fit within

WSDOT’s budget, which exists separate from the

State’s general fund. Supra at 13-14; see also App.

17la, FF54; App. 172a-173a, FF57-60; App. 177a-

178a, CL17. The Court of Appeals affirmed each of

these findings after detailed examination, see App.

34

118a-120a, App. 122a-123a (quoting App. 172a, FF56),

and the State does not challenge them here.’

Finally, the court found:

The public interest will not be disserved by an

injunction. To the contrary, it is in the public’s

interest, as well as the Tribes’ to accelerate

the pace of barrier correction. All fishermen,

not just Tribal fishermen, will benefit from

the increased production of salmon. Commer-

cial fishermen will benefit economically, but

recreational fishermen will benefit as well.

The general public will benefit from the en-

hancement of the resource and the increased

economic return from fishing in the State of

Washington.

App. 178a, CL18. This finding is echoed in the strong

support of non-Indian fishers for the Tribes’ position in

this litigation, 9th Cir. Dkt. 66-1 at 6-14, 17-20, and by

the urging of the State’s Commissioner of Public

Lands, the statewide elected official who leads the

WDNR, that the State’s Attorney General not file a Pe-

tition for Certiorari but instead work with the Tribes

to restore Washington’s salmon fisheries. Tribal Re-

spondents App. la.

’ Given the dismantling of its cost assertions by the courts

below, the State does not directly argue cost as a basis for over-

turning the injunction. However, the State and its amici at various

junctures reiterate, without substantiation, that the injunction will

cost “billions lof] dollars.” Pet. ii (Question Presented 3); Pet. 3.

The State should not present as fact assertions roundly rejected

by the courts below. Sup. Ct. R. 15(2).

35

Aside from its finger-pointing at federal officials,

the only equities the State suggests the district court

to have overlooked are the State’s voluntary efforts to

remediate culverts and restore salmon populations.

Pet. 32. But far from ignoring or punishing these “good

deed|s|,” id., the district court expressly considered

them, finding that at the State’s recent correction rate,

and “assuming no new barrier culverts were to de-

velop, it would take the State more than 100 years to

replace the ‘significantly blocking’ WSDOT barrier cul-

verts that existed in 2009,” App. 163a, FF 28. Indeed,

because of the continued deterioration of culverts, the

court found there had been an “increase in the total

number of WSDOT barrier culverts” from 2009 to 2012,

App. 164a, FF 29, “lead/ing/ to the untenable conclusion

that under the current State approach, the problem of

WSDOT barrier culverts in the Case Area will never be

solved.” App. 164a, FF31 (emphasis added). In light of

these uncontested findings, and the likewise undis-

puted fact that various “stocks of native salmon have

become so depleted that the species is listed as threat-

ened or endangered,” App. 175a, CL8, the district court

properly concluded that an injunction is necessary.

App. 179a, CL20. Indeed, it is fair to say that any deci-

sion that would instead leave in place the State’s pa-

tently inadequate approach to culverts remediation

would threaten to render the Tribes’ treaty rights, and

the salmon on which they depend, little more than a

distant memory.

36

The district court’s fact-intensive analysis of the

equities hardly constitutes an abuse of discretion, let

alone one warranting issuance of the writ.

IV. THE STATE’S ATTEMPT TO SOW FEARS

ABOUT FUTURE DECISIONS DOES NOT

TRANSFORM THE NARROW HOLDING

BELOW INTO ONE DESERVING OF RE-

VIEW BY THIS COURT.

The State and its amici argue that the decision be-

low is exceptionally important — not because of what it

says, but because of what it does not. Cherry-picking

the statements of a few commentators, and echoing the

rehearing dissent, the State claims that “(t]he panel

opinion fails to articulate a limiting legal principle that

will prevent its holding from being used to attack a va-

riety of development, construction, and farming prac-

tices, not just in Washington but throughout the Pacific

Northwest.” Pet. 33 (quoting App. 19a). But the Court

of Appeals could not have been clearer about the nar-

row scope of its decision: “We hold only that the State

violated the Treaties when it acted affirmatively to

build roads across salmon bearing streams, with cul-

verts that allowed passage of water but not passage of

salmon.” App. 10a-11a; see also App. 178a, CL19 (dis-

trict court) (“The State’s duty to maintain, repair or

replace culverts which block passage of anadromous

fish does not arise from a broad environmental servi-

tude. ... Instead, it is a narrow and specific treaty-

based duty that attaches when the State elects to block

37

rather than bridge a salmon-bearing stream with a

roadbed.”).

The State faults the Court of Appeals for not spec-

ifying other state actions that might or might not

violate the Stevens Treaties. This is remarkable. As

noted, the Phase II district court announced a broad

definition of the State’s environmental responsibilities

under the Treaties, applicable to all state activities.

The State appealed, arguing that this was tantamount

to an environmental servitude. While underscoring

that the State is bound by the Treaties, an en banc

panel of the Ninth Circuit, including then-Judge Ken-

nedy, agreed that the district court had swept too far,

and held that the precise measure of the State’s duties

should be delineated in litigation over particular state

actions. Supra at 12.

That is exactly what happened here. The Tribes

brought a clear set of facts to court on a narrow issue

involving one specific state practice — maintaining cul-

verts in streams that directly impede salmon passage

and break their anadromous life cycle. The courts be-

low found that one practice to violate the State’s duties

under the Treaties, and their carefully circumscribed

remedy focused entirely on it.

This was an appropriate, conservative exercise of

the judicial function. The Court of Appeals, as it properly

recognized, was not sitting as a super-legislature with

the authority to address all manner of situations other

than the one before it:

38

Cabining our opinion by means other than a

careful, detailed description of the facts pre-

sented would have entailed positing hypothet-

ical facts in cases not before us and giving

an improper advisory opinion.... Other

cases with different facts might come out dif-

ferently, but we did not decide — and should

not have decided — such cases.

App. 12a. The Court of Appeals, in other words, did not

“flashion|| itself as a twenty-first century environ-

mental regulator,” App. 17a, but rather as a court, re-

solving a specific dispute based on facts adduced by the

parties.

The dispute here was over the blocking of streams

and the pace of culvert corrections. It was not a dispute

over other activities that may not affect fish to the

same extent, or in the same direct and indisputable

way; that may not be as inconsistent with treaty-time

understandings, or remedied as easily with so little ef-

fect on modern life; or that may never come before the

courts. It was resolved by reading the Treaty text in

the manner required by seven prior decisions of this

Court, and in conjunction with extensive and well-doc-

umented historical, technical, and biological findings

of fact, many of them coming from the State itself. The

result conflicts with no appellate precedent and raises

no issue of such prevalence and importance as to war-

rant this Court’s review.

39

CONCLUSION

The petition should be denied.

Respectfully submitted this 27th day of November,

2017.

Riyaz A. KANJI

KANJI & KATZEN, PLLC

303 Detroit Street,

Suite 400

Ann Arbor, MI 48104

(734) 769-5400

JOHN C. SLEDD

Counsel of Record

JANE G. STEADMAN

KANJI & KATZEN, PLLC

401 Second Ave., S.,

Suite 700

Seattle, WA 98104

(206) 344-8100

jsledd@kanjikatzen.com

Counsel for Respondents the Hoh Tribe, the Jamestown

S’Klallam Tribe, the Lower Elwha Klallam Tribe,

the Nisqually Tribe, the Port Gamble S’Klallam Tribe,

the Sauk-Suiattle Tribe, the Squaxin Island Tribe,

the Stillaguamish Tribe and the Suquamish Tribe

TOM ZEILMAN

LAW OFFICES OF

TOM ZEILMAN

P.O. Box 34

Yakima, WA 98907

(509) 575-1599

Counsel for Respondent

the Confederated Bands

and Tribes of the

Yakama Nation

CRAIG DORSAY

Dorsay & EASTON, LLP

MARY NEIL

OFFICE OF THE

RESERVATION ATTORNEY

LUMMI NATION

1665 Kwina Rd.

Bellingham, WA 98226

(360) 312-9824

Counsel for Respondent

the Lummi Nation

BRIAN GRUBER

ZIONTZ CHESTNUT

2101 4th Ave., Suite 1230

1737 NE Alberta St., Suite 208 Seattle, WA 98121

Portland, OR 97211

(503) 790-9060

Counsel for Respondent

the Hoh Tribe

(206) 488-1230

Counsel for Respondent

the Makah Tribe

LAUREN RASMUSSEN

LAW OFFICES OF LAUREN P.

RASMUSSEN, PLLC

1904 Third Ave., Suite 1030

Seattle, WA 98101

(206) 623-0900

Counsel for Respondents

the Jamestown S’Klallam

Tribe and the Port

Gamble S’Klallam Tribe

STEVE SUAGEE

SAM HOUGH

TRIBAL ATTORNEYS’ OFFICE

LOWER ELWHA

KLALLAM TRIBE

2851 Lower Elwha Rd.

Port Angeles, WA 98362

(360) 452-8471

Counsel for Respondent

the Lower Elwha

Klallam Tribe

CONNIE SUE MARTIN

SCHWABE, WILLIAMSON

& WYATT

1420 5th Ave., Suite 3400

Seattle, WA 98101

(206) 407-1556

Counsel for Respondent

the Nooksack Tribe

SAMUEL J. STILTNER

JOHN HOWARD BELL

Tribal Attorneys

PUYALLUP INDIAN TRIBE

3009 East Portland Ave.

Tacoma, WA 98421

(253) 573-7875

Counsel for Respondent

the Puyallup Tribe

40

ALAN C. STAY

ANN E. TWEEDY

MUCKLESHOOT INDIAN TRIBE

OFFICE OF THE

TRIBAL ATTORNEY

39015 172nd Ave., S.E.

Auburn, WA 98092

(253) 939-3311

Counsel for Respondent

the Muckleshoot Tribe

MARYANNE MOHAN

OFFICE OF THE

TRIBAL ATTORNEY

NISQUALLY INDIAN TRIBE

4820 She-Nah-Num Drive SE

Olympia, WA 98513

(360) 456-5221

Counsel for Respondent

the Nisqually Tribe

Eric NIELSEN

NIELSEN, BROMAN

& Kocu, PLLC

1980 E. Madison St.

Seattle, WA 98122

(206) 623-2372

Counsel for Respondent

the Quinault Indian Nation

EARLE DAviD LEES

Tribal Attorney

SKOKOMISH INDIAN TRIBE

N. 80 Tribal Center Rd.

Skokomish Nation, WA 98584

(360) 887-2100

Counsel for Respondent

the Skokomish Tribe

HARRY R. SACHSE

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY LLP

1425 K Street, NW

Suite 600

Washington, DC 20005

(202) 682-0240

Co-counsel for Respondent

the Puyallup Tribe

TIMOTHY J. FILER

FOSTER PEPPER PLLC

1111 Third Ave., Suite 3000

Seattle, WA 98101

(206) 447-2904

Counsel for Respondent

the Quileute Tribe

JAMES RITTENHOUSE BELLIS

SUQUAMISH TRIBE

LEGAL DEPARTMENT

SUQUAMISH TRIBE

P.O. Box 498

Suquamish, WA 98392

(360) 394-8501

Counsel for Respondent

the Suquamish Tribe

EMILY HUTCHINSON HALEY

Tribal Attorney

SWINOMISH INDIAN

TRIBAL COMMUNITY

P.O. Box 817

LaConner, WA 98257

(360) 466-7248

Counsel for Respondent

the Swinomish Indian

Tribal Community

41

KEVIN R. LYON

SQUAXIN ISLAND

LEGAL DEPARTMENT

3711 SE Old Olympic Hwy.

Shelton, WA 98502

(360) 432-1771, ext. 1

Counsel for Respondent

the Squaxin Island Tribe

ScoTT OWEN MANNAKEE

Tribal Attorney

STILLAGUAMISH TRIBE OF INDIANS

3322 236th Street NE

Arlington, WA 98223

(360) 572-3028

Counsel for Respondent

the Stillaguamish

Tribe of Indians

DAVID HAWKINS

OFFICE OF THE

TRIBAL ATTORNEY

UPPER SKAGIT INDIAN TRIBE

25944 Community Plaza Way

Sedro Wooley, WA 98289

(360) 854-7016

Counsel for Respondent

the Upper Skagit

Indian Tribe

ARTHUR W. HARRIGAN, JR.

TYLER L. FARMER

KRISTIN BALLINGER

DANIELSON HARRIGAN LEYH

& TOLLEFSON, LLP

999 3rd Ave., Suite 4400

Seattle, WA 98104

(206) 623-1700

Counsel for Respondent

the Upper Skagit Tribe

42

MASON D. MORISSET

MORISSET, SCHLOSSER,

JOZWIAK & SOMERVILLE

1115 Norton Building

801 Second Ave.

Seattle, WA 98104

(206) 836-5200

Counsel for Respondent

the Tulalip Tribes